Morrow v. Federal Home Loan Mortgage Corp. , 122 F. App'x 879 ( 2004 )

MEMORANDUM ^**

The notice of appeal was late as to all but the attorneys’ fees issue. Under the bright line rule of Budinich v. Becton Dickinson & Co.,¹ U.S. ex rel. Familian Northwest, Inc. v. RG & B Contractors, Inc.,² and International Association of Bridge Ironworkers Local 75 v. Madison Industries,³ the May decision on the merits was final for purposes of appeal even though the attorneys’ fees issue remained for adjudication.

As for the attorneys’ fees issue, for which the notice of appeal was timely, the district court correctly decided the issue of merger that Appellant argues. There was no merger of the attorneys’ fees provision because it was collateral to the promise to convey under Soursby v. Hawkins.⁴

The appeal is in part dismissed, and in part affirmed.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988).

2 . U.S. ex rel Familian Northwest, Inc. v. RG & B Contractors, Inc., 21 F.3d 952, 955 (9th Cir. 1994).

3 . Int’l Ass’n of Bridge Ironworkers Local 75 v. Madison Industries, 733 F.2d 656, 659 (9th Cir. 1984).

4 . Soursby v. Hawkins, 307 Or. 79, 763 P.2d 725 (1988).